Can a "nonsutodial parent" claim the federal income tax exemption for the children?

The answer has usually been yes, if agreed upon by the parties or ordered by the Court. The answer is still yes but the requirements to be able to do so have changed. On June 19, 2009 the IRS issued Chief Counsel Advice Memorandum No. 200925041 and this changed the requirements needed for a noncustodial parent to claim a child exemption. For tax years after July 2, 2008, attaching a copy of the Final Judgment that transfers the exemption to the noncustodial parent as long as certain conditions are met (such as the parent having been current in child support) is not sufficient and the exemption will be disallowed. IRS form 8332 is now required or, alternatively, "a document that conforms to the substance of Form 8332 and that has as its only purpose the release of a claim to the exemption." For those whose Judgments occurred prior to July 2, 2008, the Judgment itself is good enough only if it allows the noncustodial parent to claim the exemption unconditionally. The best practice should now be that an agreement contain certain language requiring IRS form 8332 be executed for a given year when the conditions for it have been met, together with enforcement language like sanctions and/or fees.

Responding to a Child Support Case

Many of the matters I handle involve child support establishment or modification. Child support is, in theory, a mathematical calculation that should be relatively easy to determine using the child support guidelines established in Florida Statutes, Chapter 61. The key word there is "should." I often represent parties who have been served with a Petition or Notice by the Florida Department of Revenue (child support enforcement) that a new case has been opened or an old case is being looked at to see if child support should increase. But I sometimes get the sense that people think since it is such a "cut and dry" thing there is no need to really prepare for the hearing. Nothing could be further from the truth. My experience with hearings involving D.O.R. has been that there are too many cases flooding an over burdened system. As a result the Respondent really has to be prepared. No one is going to make sure your rights are protected except you and your lawyer. I have seen many, many erroneous mathematical calculations made that can be difficult, if not impossible, to have undone once ordered. I have been told after the fact about many cases where facts which should have been taken into consideration were not either addressed in Court or not proven. Proof requires preparation including knowledge as to what is relevant to the issue at hand and experience with the rules of evidence. Don’t let time slip away or expect that something that is clearly unjust won’t happen; it’s much better to get it right the first time.